*Pursuant to 5TH CIR. R. 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 97-40757

Summary Calendar

_____________________

RAMON L. GASPARINI,

Plaintiff-Appellant,

versus

BOEING DEFENSE AND SPACE - CORINTH COMPANY,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Eastern District of Texas

(4:95-CV-278)

_________________________________________________________________

May 18, 1998

Before JOLLY, BENAVIDES, and PARKER, Circuit Judges.

PER CURIAM:*

In this appeal, Ramon L. Gasparini challenges several

evidentiary and other rulings entered by the district court in his

unsuccessful trial against Boeing Defense & Space Corinth Co.

(“Boeing”) for employment discrimination on the basis of national

origin in violation Title VII, 42 U.S.C. § 2000e et seq. Finding

no abuse of discretion in any of those rulings, we affirm the

judgment entered on the jury’s verdict.
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Gasparini, who is Hispanic, was a mid-level manager at Boeing

prior to his discharge for being too autocratic in his dealings

with subordinates and others. On appeal, his main complaint is

that the district court abused its discretion in excluding evidence

of other purportedly similarly situated Caucasian managers who were

not fired for their faults. Gasparini sought to offer this

evidence to demonstrate that Boeing’s proffered reason for his

discharge was a pretext for national origin discrimination. See

St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (1993).

We review a district court’s ruling to exclude evidence 

for abuse of discretion. Guillory v. Domtar Indus. Inc., 95 F.3d

1320, 1329 (5th Cir. 1996). Under that standard, we “will not

disturb an evidentiary ruling, albeit an erroneous one, unless it

affects a substantial right of the complaining party.” Polythane

Sys. Inc. v. Marina Ventures Int'l, Ltd., 993 F.2d 1201, 1208 (5th

Cir. 1993). The burden of proving substantial prejudice lies with

the party asserting error. Federal Deposit Ins. Corp. v. Mijalis,

15 F.3d 1314, 1319 (5th Cir. 1994).

Under this court’s longstanding Title VII jurisprudence,

evidence of the treatment of other employees is only relevant to

the extent that those employees are “similarly situated.” Smith v.

Wal-Mart Stores, 891 F.2d 1177, 1180 (5th Cir. 1990). Where

discharge is based on some particular misconduct, other employees
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will not be considered “similarly situated” unless the complainant

can show, among other things, “that the misconduct for which she

was discharged was nearly identical to that engaged in by [the

other] employee[s] whom [the company] retained.” Id.

In this case, Gasparini points us towards no specific alleged

conduct on the part of other managers that is remotely similar,

much less “nearly identical” to that alleged against himself. We

therefore find no abuse of discretion in the district court’s

decision to exclude that evidence.

Gasparini’s next complaint is that the district court abused

its discretion in denying his motion to take an emergency

deposition a week before trial. “A district court’s rulings on

discovery motions are largely discretionary and will be reviewed

only when they are arbitrary or clearly unreasonable.” Robinson v.

State Farm Fire & Casualty Co., 13 F.3d 160, 164 (5th Cir. 1994).

Because Gasparini’s motion asked for discovery outside of the

court’s scheduling order, he was required to make a showing of good

cause to obtain it. Fed. R. Civ. P. 16(b). In support of the

motion, Gasparini argued that he had only recently become aware

that the witness in question would not be able to testify at trial

due to a health problem, and that the testimony was important to

his case. The district court, however, found that Gasparini had

long been aware of the health problem, and thus should have
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anticipated that the witness would not be able to testify, and that

the proposed testimony concerned events too remote in time to be

relevant to his case anyway. Based on the record before us, we

cannot say that the district court abused its discretion in making

these findings. Because Gasparini failed to make his required

showing of good cause, his motion was properly denied.

Finally, based on his two prior arguments, Gasparini also

asserts that the district court erred in denying his motion for a

new trial. We review the district court’s denial of a motion for

a new trial for abuse of discretion. Allied Bank-West, N.A. v.

Stein, 996 F.2d 111, 115 (5th Cir. 1993). A party will be entitled

to a new trial only if he can “clearly establish either a manifest

error of law or fact or . . . present newly discovered evidence.”

Simon v. United States, 891 F.2d 1154, 1159 (5th Cir. 1990).

Because we find no merit to Gasparini’s other assertions of error

in this case, the denial of his motion for a new trial was also no

abuse of discretion.

For the foregoing reasons, the judgment of the district court

is

A F F I R M E D.